The letter states that the election of the ,,presiding judge’’ goes against the Constitution of Montenegro and Law on the Constitutional Court of Montenegro. The NGOs request that the disputed decision be abolished and that the function of the president of the Constitutional Court should be filled by the eldest judge Hamdija Šarkinović, that he should immediately repeat the procedure for appointment of the president of the Constitutional Court, in order to protect constitutionality and legality and enable realization of the rule of law.
The main reason for protest is that the article 22 paragraph 4 of Law on the Constitutional Court prescribes that in an event of termination of the mandate of the president of the Constitutional Court, until election of a new president, the function of the president of the Constitutional Court should be performed by its deputy, ,,and if there is no deputy, the function of the president of the Constitutional Court should be performed by the eldest judge’’. Therefore, for the sake of legality and continuity of regular work of the Constitutional Court the aforementioned article should have been acted upon and the eldest judge Hamdija Šarkinović should have been appointed to perform the role of president of the Constitutional Court, because, for unknown reasons, the deputy of the recent president Dragoljub Drašković was never elected. According to that, the legislature has made every effort to ensure the continuity of regimen of the Constitutional Court when, for whatever reason, the termination of the mandate of the president comes to an end, even assuming the situation in which the Constitutional Court now finds itself without having a Deputy President. In such a situation, the legislature did not prescribe that judges should elect a ,,presiding judge’’, as the majority of judges unlawfully decided to do, but rather that the eldest judge should perform that function until the new president is elected.
It was also pointed out that, especially for the election of Judge Desanka Lopičić as “Presiding Judge”, with “all rights and obligations of the President of the Constitutional Court”, there is a constitutional ban, since Judge Lopičić has already been elected President of the Constitutional Court.
The NGOs highlighted that the analogy cited in the decision of appointment by the Constitutional Court with the election of the presiding judge during 1996 when the president of the Constitutional Court of Montenegro was also not elected is inappropriate, since other regulations were in force at that time, the President of the Constitutional Court was elected by the Assembly, now is elected by the Constitutional Court judges, and that at the time there was no a provision similar to Article 22 paragraph 4 of the Law on the Constitutional Court prescribing who performs the function of the president in the case of termination of his mandate. Also, the analogy with the election of the presiding judge in Croatia in 2007 is inappropriate, since it reflects a legal system of another state, which does not have a provision as Article 22 paragraph 4 of the Law on the Constitutional Court, and whose Constitutional Court at that time operated in very specific conditions without a full number of judges, while in Montenegro the Constitutional Court operates at full capacity.
It is particularly emphasized that the Council of Europe Group of States against Corruption (Groupe d’Etats contre la corruption – GRECO) recommended to Montenegro to limit the excessive concentration of powers in the judiciary and that it recently in that sense criticized third election of Vesna Medenica as President of the Supreme Court, as well as the election of presidents of courts which were appointed at least three times to the same functions. Now, even in the case of Desanka Lopičić’s election to perform the function of president of the Constitutional Court until the end of the year, and possibly longer, until a new president is elected, although she already performed the same role in one mandate before, the Constitutional prohibition was violated, and the recommendations of GRECO, whose aim is to prevent corruption, were not respected.
The NGOs warned that evading application of laws of Montenegro through invoking its own and foreign practice, represents a path to arbitrariness, from which exactly the Constitutional Court should provide protection, and it was concluded that the Constitutional Court must not allow for election of a ,,presiding judge’’, because it not only compromises the Court and endangers public trust, but it also seriously questions the ability of the state to secure the rule of law.
